C O N F I D E N T I A L SECTION 01 OF 02 MOGADISHU 10556


E.O. 12356: DECL: OADR
TAGS: PGOV PINS PHUM SO
SUBJECT: SECURITY DECREE CALLS PARTS OF CONSTITUTION INTO QUESTION

REF: MOGADISHU


1. (U) ON DECEMBER 5, RADIO MOGADISHU MADE THE
FOLLOWING BROADCAST:


2. (U) TEXT FROM UNOFFICIAL USIS TRANSLATION.
BEGIN TEXT:

THE MINISTER OF JUSTICE, HUSSEIN SHIEKH ABDIRAHMAN
MATTAN, GAVE DETAILS ON A NEW ANTI-BANDITRY LAW
SIGNED BY THE PRESIDENT WHICH WILL BE PUBLISHED IN
THE OFFICIAL BULLETIN. THE MINISTER TOLD REPORTERS
FROM THE LOCAL MEDIA THAT:

- ANYONE WHO ACTS IN A WAY THAT WEAKENS THE
GOVERNMENT POLICY ON MAINTAINING SECURITY, UNITY, AND
FUNCTIONALITY OF THE GOVERNMENT; AND COMMITS ARMED
BANDITRY AND ROBBERY OF PUBLIC AND PRIVATE PROPERTY
SHALL HAVE COMMITTTED A CRIME.

- ABOVE CRIME IS PUNISHABLE BY DEATH AND
CONFISCATION OF ALL PROPERTY.

- ANYONE WHO ORGANIZES, ENCOURAGES, FACILITATES
OR TAKES PART IN COMMITTING THE ABOVE CRIMES WILL BE
SENTENCED FROM 10 YEARS TO LIFE IMPRISONMENT, ON
CONDITION THAT THE CULPRIT SURRENDER LOOTED PROPERTY
AND DID NOT COMMIT HOMICIDE. ANYONE WHO ASSISTS THE
CULPRIT IN ESCAPING OR HIDING WILL BE SENTENCED 3 TO
5 YEARS. ANYONE WHO PURCHASES LOOTED PROPERTY OR
BROKERS OF SUCH PROPERTY WILL BE SENTENCED TO 3 TO 6
YEARS AND FINED 1 TO 5 MILLION SHILLINGS.

- ANYONE WHO HIDES KNOWN INFORMATION ON
BANDITRY WILL BE SENTENCED TO 1 TO 3 YEARS.

- IF SOMEONE GIVES ADVANCE INFORMATION ON ACTS
OF BANDITRY AND SECURITY FORCES FOIL THE PLOT, THE
INFORMANT WILL BE PARDONED.

- ANYONE WHO PROVIDES INFORMATION ON BANDITS
WILL BE FINANCIALLY REWARDED FROM 200,000 TO
2,000,000 SHILLINGS.

- ANYONE WHO USES HIS/HER VEHICLE FOR
TRANSPORTING LOOTED PROPERTY WILL BE SENTENCED TO 3
TO 5 YEARS.

- THE GOVERNOR OF THE REGION CAN KEEP THE
CULPRIT IN DETENTION BETWEEN THREE MONTHS AND ONE
YEAR, IF HE/SHE IS SEEN AS THREAT TO NATIONAL
SECURITY. THE DECISION WILL BE RATIFIED BY THE
REGIONAL COURT WITHIN SEVEN DAYS.

- ANYONE INJURED OR KILLED DURING THE COURSE OF
FIGHTING AGAINST ARMED BANDITS WILL BE COMPENSATED BY
THE GOVERNMENT WITH A SUM OF 1 TO 10 MILLION
SHILLINGS, WHILE THE SEVERANCE PAY OF THE DECEASED
WILL BE GIVEN TO HIS IMMEDIATE FAMILY INCLUDING THE
10 MILLION SHILLING BONUS.

- THE ATTORNEY GENERAL IS EMPOWERED TO APPOINT
THE TRIAL JUDGES.

- THE BANDIT CAN BE ARRESTED WITHOUT WARRANT
WITH NO RIGHT TO APPEAL.

- A DEVELOPMENT FUND TO GIVE THESE BONUSES WILL
BE ESTABLISHED WITHIN THE POLICE FORCE.

- THIS LAW WILL BE VALID FOR ONE YEAR.

- ANY EXISTING LAWS THAT CONTRADICT THIS ONE IS
NULL AND VOID.
END TEXT.


3. (C) COMMENT. IT IS NOT CLEAR WHETHER THE
DECREE APPLIES ONLY TO MOGADISHU.

NOTE: RECEIVED WITHOUT REF. NUMBER. CORRECTION TO FOLLOW.


4. (C) THE DECREE IS BROAD AND VAGUE. THE
LANGUAGE APPLYING TO "ANYONE WHO ACTS IN A WAY
THAT WEAKENS THE GOVERNMENT POLICY ON MAINTAINING
SECURITY, UNITY, AND FUNCTIONALITY OF THE
GOVERNMENT" AND ALLOWING THE DETENTION FOR UP
TO ONE YEAR OF ANYONE "SEEN AS A THREAT TO NATIONAL
SECURITY" COULD BE APPLIED TO ALMOST ANYONE OPPOSING
THE GOVERNMENT; THAT IS TO SAY, TO ALMOST ANYBODY.


5. (C) SEVERAL SPECIFIC ARTICLES OF THE NEW
CONSTITUTION ARE POTENTIALLY AFFECTED BY THIS
DECREE. ARTICLE 84, PARAGRAPH 1 ALLOWS THE
PRESIDENT TO "ADOPT PREVENTATIVE MEASURES" IN
SITUATIONS THAT "MAY PLACE THE SOVEREIGNTY, THE
TERRITORIAL INTEGRITY, THE INTERNAL OR EXTERNAL
SECURITY, OR THE FUNCTIONING OF THE COUNTRY INTO
GRAVE DANGER." PARAGRAPH 2 OF THE SAME ARTICLE,
HOWEVER, SAYS SUCH MEASURES MUST BE PRESENTED TO
THE PEOPLE'S ASSEMBLY WITHIN 30 DAYS FOR
APPROVAL, AND THE LAW CANNOT BE VALID FOR MORE
THAN SIX MONTHS, ACCORDING TO PARAGRAPH 3.


6. (C) ARTICLE 25, PARAGRAPH 2 PROHIBITS ARRESTS
EXCEPT OF THOSE CAUGHT IN THE ACT OF COMMITING
AN OFFENSE, OR BY ORDER OF A COURT. ALTHOUGH
THERE IS AN EXCEPTION FOR CASES OF "URGENT
NECESSITY," SUCH ARRESTS MUST BE BROUGHT TO THE
ATTENTION OF THE JUDICIARY WITHIN 48 HOURS SO THAT
THE VALIDITY OF THE ARREST CAN BE EXAMINED.


7. (C) ARTICLE 27 ALLOWS EXPR/PRIATION OF PRIVATE
PROPERTY ONLY FOR "REASONS OF PUBLIC INTEREST,"
AND IN EXCHANGE FOR JUST COMPENSATION.


8. (C) WHATEVER THE SPECIFIC VIOLENCE DONE TO THE
PROVISIONS OF THE CONSTITUTION, THIS SORT OF
DECREE, ALLOWING THE ARREST, WITHOUT WARRANT
OR APPEAL, FOR A BROAD VARIETY OF OFFENSES, CLEARLY
RUNS COUNTER TO THE SPIRIT OF THE DOCUMENT.


9. (C) THE NEW DECREE, ON TOP OF THE RECENT ARRESTS
OF OPPOSITION FIGURES (SEPTEL), WILL UNDOUBTEDLY
BE VIEWED BY THE OPPOSITION AS AN ACT OF BAD FAITH
ON THE PART OF THE SIAD GOVERNMENT. END COMMENT.

BISHOP